FIFTH SECTION
CASE OF SVISTUN v. UKRAINE
(Application no. 9616/03)
JUDGMENT
STRASBOURG
21 June 2007
FINAL
21/09/2007
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Svistun v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
MrP. Lorenzen, President,
MrsS. Botoucharova,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrR. Maruste,
MrJ. Borrego Borrego,
MrsR. Jaeger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having deliberated in private on 29 May 2007,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 9616/03) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Ivan Vasilyevich Svistun (“the applicant”), on 22 February 2003. After the death of the applicant, his daughter, Mrs Valentina Ivanovna Svistun, expressed her wish to pursue the application.
2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev.
3. On 13 March 2006 the Court decided to grant the application priority and to communicate the complaint concerning the length of the proceedings and the lack of remedies in that respect to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1929 and lived in the town of Volnyansk, Zaporizhzhia region. He died on 29 December 2004. On 24 August 2006, the applicant's daughter Mrs Valentina Ivanovna Svistun informed the Court that she wished to pursue the application.
5. In November 1994 the applicant instituted civil proceedings against the agricultural collective enterprise “Ukraina” seeking to withdraw his share (пай) estimated by him as an equivalent of UAH 22,000 (approximately EUR 3,200).
6. On 25 April 1997 the Volnyansky District Court (hereinafter “the District Court”) found for the applicant.
7. On 15 July 1997 the Zaporizhzhia Regional Court quashed this decision and remitted the case for a fresh consideration.
8. On 15 April 1998 the District Court, upon its own initiative, ordered a forensic accounting examination in the case for specifying the value of the applicant's share.
9. On 7 April 1999 the hearings were resumed.
10. Between June 1999 and March 2001 all hearings scheduled were adjourned eleven times due to the expert's failure to attend the hearings, two times due to the absence of the court's secretary and eight times due to the absence of the respondent's representative.
11. On 8 November 2001 the Volnyansky District Court found against the applicant.
12. On 25 March and 11 October 2002 the Zaporizhzhia Regional Court of Appeal and the Supreme Court, respectively, upheld this decision.
THE LAW
I. AS TO THE LOCUS STANDI OF MRS SVINSTUN
13. The Court notes firstly the fact of the death of Mr Svistun, and the wish of his daughter to pursue the proceedings he initiated.
14. In the circumstances of the present case, the Court considers that the daughter of the applicant has standing to continue the present proceedings in his stead. However, reference will still be made to the applicant throughout the ensuing text.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION IN RESPECT OF THE LENGTH OF THE PROCEEDINGS
15. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
A. Admissibility
16. The Court notes that the applicant's complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. Period to be taken into consideration
17. The applicant argued that the period in question began in 1994, when he lodged her claim with the domestic courts.
18. The Government maintained that the period to be taken into consideration began only on 11 September 1997, when the recognition by Ukraine of the right of individual petition took effect.
19. The Court notes that part of the proceedings complained of relates to the period prior to 11 September 1997, the date on which the Convention came into force in respect of Ukraine. After that date, the proceedings lasted until 11 October 2002, when the ruling of the Supreme Court was adopted. The length of the proceedings within the Court's competence was, therefore, so far, five years and one month. However, in assessing the reasonableness of the time that elapsed after 11 September 1997, account must be taken of the state of proceedings on that date (see Milošević v. “the former Yugoslav Republic of Macedonia”, no. 15056/02, § 21, 20 April 2006; Styranowski v. Poland, no. 28616/95, § 46, ECHR 1998-VIII; Foti and Others v. Italy, judgment of 10 December 1982, Series A no. 56, p. 18, § 53).
2. Reasonableness of the length of the proceedings
20. The Government contested the applicant's complaint, stating that there were no significant periods of inactivity attributable to the State. According to the Government, the delays in the proceedings were mainly attributable to private persons – the expert and the respondent, as well as to the applicant's challenge of the judgment.
21. The applicant disagreed.
22. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
23. The Court notes that the length of the proceedings falling within the Court's competence exceeded five years, from which four years and two months the case was pending before the first instance court.
24. The Court considers that the case concerned a property issue and was not particularly complex, either factually or legally, nor does it appear that the applicant's conduct has substantially contributed to the length of the proceedings. The Court is not persuaded by the Government's argument that the applicant should be reproached for having appealed against the unfavourable judgment of 8 November 2001, the more so, after the first instance court's judgment, the proceedings before the court of appeal and the Supreme Court lasted eleven months in total.
25. The Court further notes that the proceedings before the first instance court were suspended for one year due to a forensic accounting examination in the case. Moreover, significant delays were caused by nineteen repetitive adjournments of the case due to the expert's and the respondent's failure to appear before the court. However, the domestic court failed to take any steps to assure, in particular, the expert's presence in order to proceed with the case.
26. Finally, the Court notes that the civil dispute at issue concerned the applicant's share in the agricultural collective enterprise, which was of significant value for him.
27. Having examined all the material submitted to it and bearing in mind that the proceedings had started some two years and ten months before the entry into force of the Convention in respect of Ukraine, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.
There has accordingly been a breach of Article 6 § 1.
III. OTHER ALLEGED VIOLATIONS OF THE CONVNETION
28. The applicant further complained under Article 6 § 1 of the Convention about an unfair hearing in his case and about the partiality of the courts.
29. However, in the light of all the materials in its possession, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
30. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 1, 3 and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
31. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
32. The applicant claimed 55,000 euros (EUR) in respect of pecuniary and EUR 17,000 of non-pecuniary damage.
33. The Government contested these claims.
34. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 400 in respect of non-pecuniary damage.
B. Costs and expenses
35. The applicant also claimed EUR 900 for the costs and expenses incurred before the domestic courts and before the Court.
36. The Government contested the claim.
37. Regard being had to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses.
C. Default interest
38. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 400 (four hundred euros) in respect of non-pecuniary damage to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 21 June 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy